The Minister for Justice and Constitutional Development v Mqabukeni Chonco and 383 Others

The respondents were 384 persons serving lengthy prison sentences for offences they alleged were committed in the course of the political struggle during apartheid. All were members of the Inkatha Freedom Party (IFP). They did not apply for amnesty to the Truth and Reconciliation Commission (TRC) because the IFP did not support the TRC process. Between September and October 2003, applications for presidential pardon under s 84(2)(j) of the Constitution were submitted on their behalf to the Minister for Justice and Constitutional Development. By the time of the High Court hearing in 2007, almost four and a half years had elapsed since submission, and the applications had neither been processed nor forwarded to the President for consideration. Various parliamentary questions and correspondence between 2004 and 2007 failed to produce any substantive progress. The Minister indicated that over 1,000 such applications had been received, that they were complex, and that she was developing guidelines and a framework for dealing with them, requiring Cabinet guidance.

• Whether the Minister for Justice and Constitutional Development has a constitutional obligation to process applications for presidential pardon submitted under s 84(2)(j) of the Constitution
• Whether the Minister's failure to process such applications constitutes a breach of s 237 of the Constitution which requires constitutional obligations to be performed diligently and without delay
• Whether the processing of pardon applications constitutes administrative action or an executive function
• Whether a presidential request to the Minister to process applications must be in writing under s 101 of the Constitution to have legal consequences
• Whether prisoners have an enforceable right to have their pardon applications processed

The appeal was dismissed with costs, including those occasioned by the employment of two counsel. The High Court order was confirmed, directing the Minister for Justice and Constitutional Development to do all that is necessary within three months to enable the President to exercise the powers conferred on him in terms of s 84(2)(j) of the Constitution in an informed way regarding all 384 applications for presidential pardon. The High Court's declaration that the Minister had failed to exercise with due diligence and without delay the constitutional obligation to process the applications was also confirmed.

The binding legal principle established is that the Minister for Justice and Constitutional Development has a constitutional obligation to process applications for presidential pardon and to perform all necessary preparatory steps to enable the President to exercise the power to grant pardons under s 84(2)(j) of the Constitution in an informed manner. These preparatory steps constitute executive functions that fall within s 85(2)(e) of the Constitution by clear implication. A prisoner has the right to apply for a pardon and the executive has a corresponding obligation to process that application. The Minister's failure to perform these functions diligently and without delay constitutes a breach of s 92(3)(a) and s 237 of the Constitution. The fact that the ultimate decision to grant or refuse a pardon is a discretionary presidential power does not negate the executive's obligation to perform the preliminary functions required for the President to make an informed decision.

The court noted that the respondents were not required to establish a case under the Promotion of Administrative Justice Act (PAJA) to succeed, and accordingly arguments based on PAJA did not need to be considered. This suggests that the court viewed the constitutional obligations as free-standing and not dependent on administrative law remedies. The court also observed that it would have been impossible to contend with any cogency that the Minister had performed her duties with due diligence and without delay, given the four and a half year delay and lack of substantive progress. The judgment also implicitly recognized the complexity of dealing with applications for pardon in respect of politically motivated offences committed during the apartheid era, particularly for those who did not participate in the TRC process, though this complexity did not excuse the failure to act.

This case is significant in South African constitutional law for establishing that while the power to grant pardons under s 84(2)(j) of the Constitution is exclusively vested in the President as Head of State, the executive (through the relevant Minister and department) has a constitutional obligation to perform the preliminary functions necessary to enable the President to exercise that power in an informed manner. The judgment clarifies the separation and interaction between presidential powers and executive functions, particularly in relation to pardons. It reinforces the principle that constitutional obligations must be performed diligently and without delay as required by s 237 of the Constitution. The case is particularly important in the context of dealing with politically motivated offences committed during the apartheid era, especially for those who did not participate in the TRC process. It establishes that prisoners have an enforceable right to have their pardon applications processed, even though the grant of a pardon itself remains a matter of presidential discretion.